In thinking about how to respond to the vacancy on the Supreme Court, the administration has two priorities. First, fill the Scalia seat by getting a nominee confirmed. The stakes could not be higher: the appointment could flip the Supreme Court’s ideological balance for decades. Second, gain as much political benefit as possible and exact as heavy a political toll as possible on Republicans, particularly in the presidential election. Precisely because of the seat’s importance, this is the rare time that a material number of voters may seriously think about the Court in deciding whether to vote at all and who to vote for.

Those priorities reinforce each other. The Republican Senate leadership has staked out the position that no nomination by President Obama will move forward. Because Republicans hold the Senate majority, they have the power to refuse to hold confirmation hearings before the Judiciary Committee and/or a floor vote on the nominee. So, any effort to replace Scalia is dead on arrival unless the political dynamic in the country forces Republicans to change their minds and allow the nomination to proceed.

Not surprisingly, Republican priorities are the exact opposite. Fundamental conservative legal victories over the past two decades hang directly in the balance. To take just one example, Ted Cruz is exactly right to say that a more liberal replacement for Justice Scalia is very likely to overturn the Supreme Court’s recent recognition of a Second Amendment right to possess firearms or at least render it a nullity as a practical matter. There are dozens of other examples. Conversely, a Republican appointee would not only preserve those victories but continue the Court’s steady move to the right.

In addition, blocking President Obama’s nominee is good politics for important subsets of Republicans. Most directly, the Supreme Court is a signal issue for the conservative Republican base in a way that it is not for core Democratic constituencies. Since at least Richard Nixon, conservatives have effectively rallied against the Supreme Court as a liberal institution that is out of control. We see that dynamic today in Republican candidates’ remarkable attempt to frame even Chief Justice Roberts as a failure, based on his votes to uphold the Affordable Care Act and the administration’s implementation of the Act.

Those competing priorities put the political parties in a deadly embrace from which neither will budge. The administration feels a constitutional responsibility to press for the confirmation of a nominee and every political advantage in doing so. Republicans cannot accede to that effort because their base will not permit it.

In particular, it is impossible to overstate the importance of Ted Cruz, who will make the appointment a central issue in the campaign and who will drive enormous pressure against proceeding with any nomination. That pressure is likely to be too great for the Republican Senate leadership to overcome, even if it concludes that it would be better politics to do so.

Cruz is extremely sophisticated regarding these issues both legally and politically. He understands the stakes perfectly and is a thought leader among Republicans regarding the Court. He immediately understands the value to his own personal candidacy – and he would say, to Republican prospects in the general election – in taking the hardest possible line against permitting President Obama to replace Scalia.

On some level, this is a reprise of Cruz’s filibuster that shut down the government in an effort to rally conservatives in support of defunding the Affordable Care Act. The filibuster motivated the Republican base and dramatically raised Cruz’s own personal profile. But the general consensus is that it hurt the Republican brand overall among independent voters.

So given the dynamic, how does each side proceed? The administration can pick a nominee that fulfills both its jurisprudential and political goals, without giving Republicans a tool with which to fight back to persuade undecided voters. Dozens of nominees fit the ideological bill of being solidly progressive and changing the Court’s ideological balance if confirmed. The more interesting question for the administration will be which one creates the greatest political benefit and exacts the greatest political costs for Republicans in the general election.

Democrats have two political priorities: motivating turnout by their own voters and persuading independents to vote for the Democratic nominee. Two Democratic constituencies in particular vote in disproportionately low numbers: young Democrats and minorities.

The youth vote makes little difference here because the age range for a serious nominee (roughly, forty-five to fifty-two) does not directly touch that constituency. There are specific potential nominees who would motivate young liberal voters – Senator Elizabeth Warren, for example. But those nominees are the ones who would give Republicans the opportunity to hold hearings and reject the appointment on an up-or-down vote without serious cost.

Minority voters are a different matter. Traditionally, black and Hispanic turn-out has trailed white turn-out. In the 2004 election, the percentages were white 67.2%, black 60.0%, and Hispanic 47.2%. In 2008, they were white 66.1%, black 64.7%, and Hispanic 49.9%. The 2012 election was the first in which the proportion of black turn-out exceeded that of whites. The percentages were white 64.1%, black 66.2%, and Hispanic 48.0%.

Overall, in 2012, the white proportion of the voting population decreased to 71.1% and the minority proportion increased to 28.9% (22.8% black and Hispanic). For that reason, many attribute President Obama’s reelection to minority turn-out.

The best candidate politically would probably be Hispanic. Hispanic voters both (a) are more politically independent than black voters and therefore more in play in the election, and (b) historically vote in low numbers. In that sense, the ideal nominee from the administration’s perspective in these circumstances is already on the Supreme Court: Sonia Sotomayor, the Court’s first Latina.

On the other hand, I think the President personally will be very tempted to appoint a black Justice to the Court, rather than a second Hispanic. His historical legacy rests materially on advancing black participation and success in American politics. The role Thurgood Marshall previously played in that effort is inescapable. The President likely sees value in providing a counterpoint to the Court’s only black Justice, the very conservative Clarence Thomas.

For those reasons, I think the President will pick a black nominee. I’ve long said that the most likely candidate for the next Democratic appointment was California Attorney General Kamala Harris. She is fifty-one. A female nominee has significant advantages as well. That is particularly true for the candidacy of the likely Democratic nominee, Hillary Clinton. For reasons I’ve discussed elsewhere, I think her nomination is difficult to oppose ideologically, given her history as a prosecutor.

If Harris wanted the job, I think it would be hers. But I don’t think she does. Harris is the prohibitive favorite to win Barbara Boxer’s Senate seat in the 2016 election. After that, she is well positioned potentially to be president herself. If nominated, she would have to abandon her Senate candidacy and likely all of her political prospects. So I think she would decline.

Attorney General Loretta Lynch, who is fifty-six, is a serious possibility. But she would likely have to recuse from her job, leaving that position open indefinitely. I also think that the Republicans would have an argument that the attorney general’s position shouldn’t be left open.

No other black woman immediately comes to mind as a nominee, though I haven’t researched the question in some time. But there is an obvious black male: Paul Watford, an Obama appointee to the Ninth Circuit. Watford is in his late forties. He is well respected and reasonably well known in Democratic legal circles.

Watford was confirmed by the Senate in 2012 by a vote of sixty-one to thirty-four, which is a filibuster-proof majority. Nine Republicans voted in favor of his nomination. That gives the Administration considerable ammunition to argue publicly that Republicans, by refusing to process the nomination, are blocking someone who is recognized to be qualified.

Logistically, the fact that Watford was vetted so recently also makes it practical for the president to nominate him in relatively short order. There is some imperative to move quickly, because each passing week strengthens the intuitive appeal of the Republican argument that it is too close to the election to confirm the nominee. Conversely, a nomination that is announced quickly allows Democrats to press the bumper sticker point that Republicans would leave the Supreme Court unable to resolve many close cases for essentially “a year.”

The favorite candidate in Democratic legal circles is generally Judge Sri Srinivasan of the D.C. Circuit, followed by Patricia Millett of the same Court. Both are recent Obama appointees. Srinivasan is a Indian American. Millett is a woman. Both would fit the ideological profile that the administration would want. But neither provides the same political benefit.

So while I will update my research on potential nominees, at this point I think that Judge Paul Watford is the most likely candidate.

Recent Decisions

United States v. Stitt The term "burglary" in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.

Weyerhaeuser Company v. United States Fish and Wildlife Service An area is eligible for designation as “critical habitat” under the Endangered Species Act of 1973 only if it is habitat for the listed species; and the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat under 16 U. S. C. §1533(b)(2) is subject to judicial review.

Mount Lemmon Fire District v. Guido State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.

Current Relists

Conference of December 7, 2018

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Hester v. United States Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.

Download our App in the Apple Store

On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.